Resurrecting The Repugnancy: The Kerala HC's Misreading Of Coparcenary Law
Sparsh Srivastava
19 July 2025 9:25 PM IST
Introduction
In a recent ruling, the Kerala High Court struck down Sections 3 and 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (hereinafter, 1975 Act), on the ground that they were repugnant to Section 6 of the Hindu Succession (Amendment) Act, 2005 (hereinafter, HSA). While the judgment appears well-intentioned in its commitment to gender justice, it suffers from serious constitutional and jurisprudential legal infirmities. The Court, in effect, discovered a repugnancy where none existed and disregarded principles of harmonious construction and federalism.
Backdrop of the Case
The Kerala Act of 1975 was a pathbreaking piece of legislation that abolished the concept of the joint Hindu family in the State of Kerala, which had traditionally excluded women from inheritance in ancestral property. It aimed at ensuring equal inheritance rights by treating all property as self-acquired, thereby removing the legal fiction of joint family ownership. In contrast, the 2005 Amendment to the Hindu Succession Act inserted a new Section 6, granting equal coparcenary rights to daughters—bringing all daughters of coparceners on par with sons across most of India.
The central premise of the Kerala High Court's ruling was that the 2005 central amendment and the 1975 state law cannot co-exist. It held that once the Parliament amended the HSA to give daughters coparcenary rights, any state law which denied such rights would be void under Article 254 of the Constitution. This reasoning, however, ignores the fundamentally different modus in which the two laws operate.
The landmark decision: Vineeta Sharma v. Rakesh Sharma
In a much celebrated decision of Vineeta Sharma v. Rakesh Sharma[1], the Supreme Court clarified that Section 6 of the HSA is retroactive in nature and conferred coparcenary rights on daughters irrespective of whether the father (coparcener) was alive on the date of the amendment. This was a significant stride toward gender equality in Hindu personal law. However, the decision operates within the framework of coparcenary a structure that had already been dismantled in Kerala by the 1975 Act.
The Kerala High Court's reliance on Vineeta Sharma is therefore misplaced. The judgment in Vineeta Sharma presupposes the existence of a coparcenary system, whereas in Kerala, such a system was legislatively abolished decades earlier. Hence, the question of applying Section 6 of the amended HSA in Kerala's context does not arise at the first place.
Law of Succession in Kerela: A distinct Legal Landscape
Law of Succession fall under the Concurrent list and therefore, both Centre and the State can make laws on it. By virtue of the same, Section 4 of the Kerala Act abolished the concept of a joint Hindu family as a legal entity, and with it, the coparcenary system. As a result, all property devolved through succession rather than survivorship, and daughters, by virtue of the abolition, were already treated as equal heirs.
Thus, by the time the 2005 Amendment came into force, there was apparently no coparcenary property in Kerala to which Section 6 of the HSA could apply. To that extent, the State law operated in a distinct legal terrain. The High Court failed to appreciate this difference and treated the central law as universally applicable, even in a context where its core subject matter was non-est in law.
Departure from Article 14 Jurisprudence
The High Court's rationale based on the ostensible ground of equality under Article 14, is also legally untenable. In Ram Charan & Ors. v. Sukhram & Ors[2]., the Supreme Court acknowledged that equality under Article 14 is not absolute and may accommodate legal classifications arising from customs or special legislations. The 1975 Act does not deny equality but removes the very basis of discrimination by abolishing the coparcenary itself. The Act, being a statutory provision fall under the provided exception of special legislation, does not affected by the Vineet Sharma dictum.
Article 14 does not suggest an utopian idea of absolute equality and it is not the role of judiciary but legislature to make laws to bring social reforms to promote equality. The 1975 Act does not promote inequality, but uniformity. The authority to reform or repeal socially transformative laws, particularly personal laws, rests with the legislature. It may also put to challenge several statutory and local laws in place, which may create further issues in application.
Issue of Inconsistency and the Misapplication of Article 254
The judgment invokes Article 254 of the Constitution to hold that the Kerala Act is repugnant to the HSA. Judicial intervention in absence of any irreconcilable conflict undermines the separation of powers and the principle of federalism.
Repugnancy under Article 254 arises only when (a) there is a direct conflict between a Central and State law on a subject in the Concurrent List, and (b) both laws occupy the same field. However, the Kerala Joint Hindu Family System (Abolition) Act, 1975 and the Hindu Succession Act, 2005 operate in distinct legal contexts: the former abolishes coparcenary; the latter modifies the rules of inheritance within an existing coparcenary.
There is, therefore, no direct inconsistency, and both laws could have been read harmoniously. It is a settled principle that when two laws operate in different domains or on different subject-matters, the question of discrimination or inequality does not arise. By ignoring the well-established doctrine of harmonious construction, the High Court unduly expanded the scope of repugnancy and struck down a law that was not only constitutionally valid but also historically progressive.
Conclusion
The Kerala High Court's ruling, undoubtedly motivated by the principle of gender equality, undermines the federal balance and distorts the doctrine of repugnancy. It conflates distinct legal frameworks and fails to recognise the constitutional value of diversity in state legislation.
The Kerala Joint Hindu Family System (Abolition) Act, 1975 was ahead of its time in securing gender justice by abolishing an inherently patriarchal institution. Ironically, the High Court's ruling now seeks to undo that very achievement in the name of progress.
This decision not only misconstrues the scope of Section 6 of the HSA but also oversteps the boundary of judicial interpretation. The power to make or repeal laws lies with the legislature, not the judiciary. Courts must be cautious not to read into a central enactment an intent to override state-specific reforms that operate in a different legal framework altogether.
In discovering repugnancy where none exists, the Court attempts to set a precedent that may inadvertently instigate judicial intervention in state-specific progressive reforms elsewhere undermine the federal structure and promote judicial performing legislative functions.
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